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New York judge hears case on rights of research chimpanzees

The case of two chimpanzees, Hercules and Leo, who are being used for biomedical research in the United States, went before the New York County Supreme Court in Manhattan yesterday (Wednesday) in a landmark case filed by the Nonhuman Rights Project (NhRP).

Lawyers for Hercules and Leo argued before Supreme Court justice Barbara Jaffe that the chimps should be granted personhood.

President of the NhRP, Steven Wise (pictured left), says that autonomous and self-determining beings have a right to habeas corpus to protect their fundamental right to bodily liberty.

He points out that he is seeking personhood for chimpanzees, not human rights. He’s not suggesting that chimps are people; the rights he is seeking for chimpanzees are chimpanzee rights, he says, and the same applies to elephants, dolphins, whales, orcas, and any other nonhuman animals whose cause he champions.

“The reason we chose chimpanzees is because we think they are our strongest plaintiffs,” he said during a recent lecture tour in Australia. “The scientific facts really help us; they clearly are autonomous and self-determining beings. If we can’t win with the chimpanzees, we can’t win with anybody.”

Wise said in court yesterday: “They are the kinds of beings who can remember the past and plan ahead for the future, which is one of the reasons why imprisoning a chimpanzee is at least as bad and may be even worse than imprisoning a human being.”

Chimpanzees in laboratories spend most of their time in solitary confinement, Wise told a packed courtroom. “The way we treat Hercules and Leo is the way we treat our worst human criminals.”

The fact that Hercules and Leo had been granted a hearing was, Wise said, a partial victory in itself.

At yesterday’s hearing, which lasted nearly two hours, Justice Jaffe heard procedural arguments from both sides regarding venue, standing, and whether or not she was bound by the decisions in earlier chimpanzee habeas corpus cases.

She then asked the lawyers to address the substantive issues of the case – arguments that have never been fully heard in an English-speaking court before.

Hercules and Leo are being held at Stony Brook University on Long Island so that researchers in the anatomy department can study the evolution of locomotion: how beings went from bent-leg to straight-leg creatures.

“I’m not an anti-science person. I have a chemistry degree and am actually a very scientifically oriented person,” Wise said during his lecture tour, “but there is such a thing as right and wrong, and this in my mind is wrong.”

Wise doesn’t call what he practices “animal welfare law” or “animal protection law”; he prefers to refer to call it “animal slave law”. The basis of the legal cases brought by the NhRP is the same as that underpinning cases brought on behalf of slaves in the 18th and 19th centuries.

After yesterday’s hearing, Judge Jaffe gave no indication of exactly when or how she will rule, but a judgement is not expected before four weeks. Jaffe thanked both sides for what she called an “extremely interesting and well argued” proceeding and said she would be issuing a decision in due course.

In April, Jaffe granted the chimpanzees a writ of habeas corpus, but the next day she struck out the words “writ of habeas corpus”, and her ruling then read “order to show cause”.

The judgement still meant that Stony Brook University, represented by lawyers from the New York Attorney General’s office, had to appear in court and provide a legally sufficient reason for detaining the chimps, but there was no obligation for the chimps to be brought to court.

Wise says Hercules and Leo should be moved from Stony Brook to the Save the Chimps sanctuary in Florida.

Lawyers for the attorney-general’s office say Hercules and Leo are not entitled to legal rights and argues that relocating them to a sanctuary is just replacing one form of captivity with another.

The assistant New York state attorney-general, Cristopher Coulston, said in court yesterday: “They will be held in conditions the petitioner views as better, but they will undeniably be held there. They will be placed on islands because they can’t swim. Their bodily liberty is constrained, maybe in a different way, but it is still constrained.”

Coulston argued that recognizing the chimpanzees as legal persons would create a slippery slope that could lead to many other kinds of animals being granted legal rights.

Wise responded that there was no slippery slope because the scientific evidence he was presenting only applied to cognitively complex, autonomous animals – specifically great apes, elephants, and certain species of whales and dolphins. He drew the court’s attention to a stack of affidavits by scientific experts supporting his claim that Hercules and Leo had the right not to be held in confinement.

When Coulston argued that “there’s simply no precedent anywhere of an animal getting the same rights as a human”, Wise responded that the same argument was used by lawyers trying to persuade judges not to grant rights to slaves and, later, native Americans.

The Manhattan Supreme Court is an intermediate appellate court, and any ruling can be appealed further, to the New York Court of Appeals, which is the highest court in the United States.

Other cases

Lawyers are meanwhile awaiting the outcome of two other cases, involving two other chimpanzees – Tommy and Kiko. They are waiting to see if their appeals will be heard by the apex court.

Wise discovered Tommy in Gloversville, New York State, in 2013. “He was in a large warehouse,” he said. “We saw him in a dark room that had a bank of cages, all of which were empty except Tommy’s, and there was a small portable television set about ten feet away from him that was tuned to Sesame Street.”

The day the investigators found Tommy, the temperature in the warehouse was about 40 degrees below what it would be in his native land.

Kiko was found at Niagara Falls, in a cement storefront, along with 29 monkeys and 19 exotic birds.

Kiko

The NhRP says that Kiko, who is thought to be about 26 years old, suffers deafness as a result of abuse inflicted on him on the set of a Tarzan movie. He has an inner ear condition that requires him to take anti-motion sickness medication, especially during changes in barometric pressure.

Kiko is trained in martial arts and became known as “the karate chimp”. There are numerous photos of him dressed up in martial arts clothing, appearing with various celebrities.

In the case of Tommy, the judge in the intermediate appellate court said the chimpanzee could not be a person. Even if the lawyers proved that Tommy was autonomous and self-determining, the judge said that, in order to be a person, he would have to bear rights and responsibilities. “This is of course false,” Wise said. “There are plenty of humans who cannot bear rights and responsibilities; those with Alzheimer’s or in a coma, for instance.

“There are millions of people who can’t bear rights and responsibilities, but we don’t eat them and we don’t use them in biomedical research.”

In Kiko’s case, the judge said the lawyers were not using the writ of habeas corpus correctly: that it could only be used to move someone from a place of confinement to absolute freedom.

Wise also challenges this. “There are numerous cases, including many cases involving slave children in the 1840s and 1850s … those kids weren’t sent out into the streets of Boston or New York.” The children were sent from one place of confinement into someone’s care, Wise points out.

In the case of Hercules and Leo, Jaffe was the second appellate court judge to hear the case. The first judge threw out the case, and told the lawyers they had no right to appeal. So the NhRP filed again.

Wise says much depends on the grounds of Jaffe’s ruling, but if a chimpanzee in one jurisdiction is granted a writ of habeas corpus, it would be likely, he says, that other chimps in the same jurisdiction would also be beneficiaries. Other jurisdictions might then be influenced by a judgement in favour of a nonhuman animal.

The NhRP is currently preparing for its next case, in which the lawyers will seek habeas corpus on behalf of elephants. Wise said the case would be brought in another US state, but he is not yet revealing further details. “It’s all top secret,” he said.

“We have been working for a long time with the elephant cognition experts of the world. We have already organised for an elephant sanctuary to take them if we can persuade a court to move them.”